{"id":3788,"date":"2013-07-18T00:35:14","date_gmt":"2013-07-18T00:35:14","guid":{"rendered":"http:\/\/www.markagallagher.com\/socaldefenselawyers\/dui-defenses-that-work-dont-trust-the-breathalyzer\/"},"modified":"2020-10-30T20:46:58","modified_gmt":"2020-10-30T20:46:58","slug":"dui-defenses-that-work-dont-trust-the-breathalyzer","status":"publish","type":"post","link":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/dui-defenses-that-work-dont-trust-the-breathalyzer\/","title":{"rendered":"DUI defenses that work – Don’t Trust the Breathalyzer"},"content":{"rendered":"

\"Don't<\/a>Don’t Trust the Breathalyzer<\/h1>\n

I have people call me every day and ask, “If I blew over the limit…..how can I win my case?” \u00a0People just can’t imagine that they could blow over the limit and NOT get a DUI conviction.\u00a0 \u00a0 The very first step in building a defense in a case with a breath test over the legal limit is to explain why I don’t trust the breathalyzer.\u00a0 \u00a0 Some jurors literally think it’s their job to listen to the evidence waiting for that magic number from the breathalyzer, and if it’s over the limit they are ready to return a guilty verdict.\u00a0 \u00a0If the jury isn’t properly educated about why the prevailing science tells us don’t trust the breathalyzer, then the jury will accept the breathalyzer as accurate.<\/p>\n

I have personally used this defense to have many DUI charges dismissed in court and at the DMV for my clients in my California DUI defense practice<\/a>.\u00a0 One of the most effective defenses to present in a California DUI case is the simple fact the breathalyzers are far from perfect.\u00a0 Jurors and Judges must be educated about the flaws these devices suffer from.\u00a0 \u00a0When returning a verdict, don’t trust the breathalyzer!<\/p>\n

Can a breathalyzer measure your blood alcohol content?<\/h2>\n

The first step in the analysis is to accept that the breathalyzer is not actually measuring your blood alcohol content. \u00a0 The breathalyzer is taking a BREATH sample, not a BLOOD sample. \u00a0 So a breathalyzer device, even if operated 100% correctly, under perfect testing conditions, and in perfect maintenance and calibration, will never yield your blood alcohol content.\u00a0 \u00a0If we really want to know what’s in someone’s blood, blood is the only place to look.\u00a0 \u00a0 This is the starting point for why I don’t trust the breathalyzer.\u00a0 \u00a0What the breathalyzer will yield is a Breath Alcohol Concentration. \u00a0This is sometimes referred to in California courts and California DUI law as a BrAC.\u00a0 \u00a0This should be your first clue ….don’t trust the breathalyzer!<\/p>\n

How Does the Breathalyzer Work?<\/h1>\n

Why do we test people’s breath to determine the level of intoxication or impairment? \u00a0Does the amount or stench of alcohol on your breath actually help determine how drunk you are? \u00a0Definitely not. \u00a0For example, someone could stink like a brewery after drinking a six pack of non alcoholic beer. \u00a0 That person is obviously not impaired, but they sure smell like it. \u00a0 On the other end let’s take someone who had half a bottle of vodka, some breath mints and shower. \u00a0They smell great, but they should call a cab. \u00a0So why take a breath test?<\/p>\n

The basic scientific principle comes from something called Henry’s law<\/a>. \u00a0Henry’s law says that in a closed system, the amount of ethanol in the airspace above a liquid is proportional to the amount of ethanol in the liquid. \u00a0 “Closed system” implies that this is taking place in controlled environment.\u00a0 I’m a lawyer not a chemist, so I’m going to butcher Henry’s law for purposes of explanation. \u00a0 The basic idea is that we can use the air above the alcohol in your body to determine how much alcohol is in your blood. \u00a0 \u00a0The problem with applying Henry’s law to Breathalyzer tests for alleged DUI drivers is that in order for the formula to work, we need a closed system. \u00a0Testing on the side of the road, in the middle of the night, based on the breath exhaled by someone scared shitless standing next to a guy with a gun is not a closed system. \u00a0But that’s another blog post for another day. \u00a0Let’s assume the system is closed and move to the actual flaws in the machine that tell us….don’t trust the breathalyzer.<\/p>\n

Partition Ratios – Don’t trust the breathalyzer<\/h1>\n

Partition Ratios are just one of the many reasons that I don’t trust the breathalyzer.\u00a0\u00a0\u00a0<\/em><\/strong>\u00a0<\/em>Using partition ratios to win your DUI case starts with understanding how the breathalyzer generates a number from the breath sample. \u00a0 The breathalyzer measures the amount of alcohol in your BREATH and then does some math. \u00a0 When doing this math, one of the basic assumptions made by the software in the breathalyzer device is that the partition ratio for the subject is 2100:1. \u00a0 So the breathalyzer ASSUMES that the conditions inside the body of the person blowing into the machine will create an environment in which 210 liters of breath contains the same amount of alcohol as 100 milliliters of blood. \u00a0 So essentially, the breathalyzer will take a reading of you Breath Alcohol Content and multiply it by 2100 in order to give your Blood Alcohol Content.<\/p>\n

Using the partition ratio to win your case<\/h1>\n

The key to this defense is that the partition ratio of 2100:1 is simply an average for human subjects. \u00a0 Actual testing in scientific studies has shown that people can have a partition ratio of anywhere from as low as 834:1 and as high as 3005:1. \u00a0 Why does this matter? \u00a0 Well as much as I hate to admit it, it’s time to do some math. \u00a0 Let’s take an example of a subject with a breathalyzer test result of .10. \u00a0 This person is obviously way over the legal limit right? \u00a0Maybe not. \u00a0 Remember that this test result of .10 is based on the breathalyzers assumption that the subject has a partition ratio of 2100:1, \u00a0 What if scientific testing were to show that our subject actually had a partition ratio of 834:1? \u00a0Or what if we had 3005:1? \u00a0If our subject truly had a partition ratio of 834:1, the breathalyzer would still read a .10 (because the software ALWAYS uses this number), but our subject’s true blood alcohol content would be .03. \u00a0Less than HALF of the legal limit in California. \u00a0 If our subject truly had a partition ratio of 3005:1, the breathalyzer would still read a .10, but our subject’s true blood alcohol content would be .14 \u00a0 You may need to go back and read this a few times for it to sink in but the breathalyzer showing someone is well over the legal limit, is actually telling us that the person is somewhere between a .03 and .14 depending on their actual partition ratio.<\/p>\n

Partition Ratio Defense – So Effective it’s Illegal<\/h1>\n

DUI defenses that<\/em>\u00a0work<\/em><\/strong>\u00a0<\/em>are not popular with the prosecutors, Judges, MADD advocates, and other government types. \u00a0 So when confronted with science that challenges the validity of a DUI conviction, they do exactly what you would expect, they change the law. \u00a0In California, VC 23152(b) has written it right into the law. \u00a0 The legislature has determined that we don’t care what your partition ratio really is, because in this here state not only is it illegal to drive with a blood alcohol content of .08 or greater, it’s also illegal to drive with a breath alcohol content of .08 or greater assuming a partition ratio of 2100:1. \u00a0 This means that the legal limit is not really .08 for all people driving in California. \u00a0 Depending on your partition ratio, your number could be as low as .03 and you could be found guilty under the law in VC 23152(b). \u00a0 Now before you go running off to plead guilty, keep in mind that partition ratios are still completely admissible and relevant as a defense to VC 23152(a), and more importantly, partition ratios are just one of many reasons that I don’t trust the breathalyzer. \u00a0 Properly defending a DUI charge requires use of multiple strategies, not just one. \u00a0To learn more about how to properly defend a DUI charge give me a ring at 800-797-8406 or send me an email using attorneygallagher@gmail.com. \u00a0Visit our website by clicking here<\/a>. \u00a0You can also check us out on YELP<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

Don’t Trust the Breathalyzer I have people call me every day and ask, “If I blew over the limit…..how can I win my case?” \u00a0People just can’t imagine that they could blow over the limit and NOT get a DUI conviction.\u00a0 \u00a0 The very first step in building a defense in a case with a…<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_kad_post_transparent":"","_kad_post_title":"","_kad_post_layout":"","_kad_post_sidebar_id":"","_kad_post_content_style":"","_kad_post_vertical_padding":"","_kad_post_feature":"","_kad_post_feature_position":"","_kad_post_header":false,"_kad_post_footer":false,"footnotes":""},"categories":[19,5,20],"tags":[70,22,23,7,362,559,438,531,222,80,10,30,31],"class_list":["post-3788","post","type-post","status-publish","format-standard","hentry","category-california-criminal-law-blog","category-california-dui-law-blog","category-california-traffic-ticket-blog","tag-70","tag-criminal-defense","tag-dmv","tag-dui","tag-dui-california","tag-dui-defenses-that-work","tag-dui-laws","tag-dui-lawyer","tag-dui-penalties","tag-second-time-dui","tag-traffic-court","tag-traffic-tickets","tag-trial"],"_links":{"self":[{"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/posts\/3788","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/comments?post=3788"}],"version-history":[{"count":1,"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/posts\/3788\/revisions"}],"predecessor-version":[{"id":5372,"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/posts\/3788\/revisions\/5372"}],"wp:attachment":[{"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/media?parent=3788"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/categories?post=3788"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/tags?post=3788"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}